Citation Nr: 0020572
Decision Date: 08/04/00 Archive Date: 08/09/00
DOCKET NO. 98-01 697 ) DATE
)
SUPPLEMENTAL DECISION )
On appeal from the
Department of Veterans Affairs Regional Office in Salt Lake
City, Utah
THE ISSUE
Entitlement to an effective date prior to November 5, 1997,
for the award of a 100 percent rating for service-connected
PTSD.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Valerie E. French, Associate Counsel
INTRODUCTION
The veteran served on active duty from January 1965 to
November 1967. His decorations include the Vietnam Campaign
Medal, the Vietnam Service Medal with 2 bronze stars, the
Secretary of the Navy Commendation for Achievement Medal, and
the Naval Reserve Meritorious Service Ribbon.
This appeal arises before the Board of Veterans' Appeals
(Board) from a November 1997 rating decision of the Salt Lake
City, Utah, Regional Office (RO) of the Department of
Veterans Affairs (VA) in which a grant of service connection
for PTSD was implemented with the assignment of a 10 percent
rating, effective September 20, 1993. In January 1998, the
RO granted an evaluation of 100 percent rating for PTSD,
effective November 5, 1997, the date of a VA examination
which was conducted for compensation and pension purposes.
The Board notes that following the initial assignment of
rating for PTSD (at the 10 percent level) in November 1997,
the veteran initiated an appeal with regard to that rating by
filing a notice of disagreement in which he disagreed with
the November 1997 decision isofar as the disability
percentage assigned to his claim. The subsequent grant of a
100 percent rating did not constitute a complete grant of the
benefits sought on appeal as the total rating was not made
effective retroactively to the date of the veteran's claim.
As such, the veteran's claim for an evaluation in excess of
10 percent disabling for PTSD, for the period beginning
September 20, 1993, continues. See Fenderson v. West, 12
Vet. App. 119 (1999). However, the Board may not accept
jurisdiction of this issue at this time as an appeal has not
been perfected thereon and the veteran has not been furnished
with a Statement of the Case with regard to this issue. In
light of the holding in Manlincon v. West, 12 Vet. App. 238,
240-41 (1999), the increased evaluation claim is being
remanded so that the veteran may be furnished with a
Statement of the Case and the opportunity to perfect an
appeal.
FINDING OF FACT
1. On VA examination in November 5, 1997, the examiner
assigned a current GAF of 35 and estimated the veteran's
level of functioning with a GAF score of 45 during the past
several years.
2. In a December 1997 statement, the veteran's treating VA
physician provided an opinion that the veteran's GAF during
the years since 1993 ranged from 45 to 50.
3. The record includes a February 12, 1996 statement from a
licensed psychologist who noted that the veteran was
currently extremely isolated with additional symptoms of
anger control problems, intrusive imagery, vulnerability to
stress, and problems with memory and concentration related to
PTSD. The psychologist noted that the veteran required
assistance for rehabilitation due to the impairment in his
social and occupational skills and that these symptoms put
him at a significant disadvantage with regard to employment
and social interaction.
CONCLUSION OF LAW
An effective date of February 12, 1996 is warranted for the
award of a 100 percent rating for PTSD. 38 U.S.C.A. § 5110
(West 1991 & Supp. 1999); 38 C.F.R. § 3.400 (1999).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Initially, the Board finds that the veteran's claim is well
grounded within the meaning of 38 U.S.C.A. § 5107(a) (West
1991 & Supp. 1998) that is, the claim is plausible.
Proscelle v. Derwinski, 2 Vet.App. 629, 632 (1992). The
record does not indicate the need to obtain any additional
pertinent records, and is accordingly found that all relevant
facts have been properly developed, and that the duty to
assist the veteran has been satisfied.
Evidence
A January 1991 evaluation report shows that the veteran had
complained of irritability, dysphoria, insomnia, and an
inability to concentrate, which were stressors related to his
new job, finances, and work pressures. The following
diagnostic impressions are shown: Axis I, major depression,
single episode, moderate; Axis II, diagnosis deferred; Axis
III, no diagnosis; Axis IV, psychosocial stressors, mild;
Axis V, adaptive functioning, GAS (sic): 51. It was
suggested that the veteran enter a Sertraline/amitriptyline
depression study.
In a statement dated April 1994, James M. Ferguson, M.D.,
indicated that he had initially seen the veteran in August
1991 for a chief complaint of depression, major episode,
which was treated with a clinical trial of sertraline. At
the end of the trial, in November 1991, he was continued on
Amitriptyline at his request. Dr. Ferguson indicated that
the veteran had last been seen in this office in April 1992
at which time he was on Zoloft 200 mg.
In January 1993, the veteran was hospitalized by VA for
substance abuse rehabilitation. On admission, he gave a
history of maintaining employment somewhat secondary to his
assertion and anger issues. He recognized alcohol as
contributing to his problems. On admission, findings
included depressed mood, low self esteem, oversleeping,
complaints of fatigue, guilt, worthlessness, irritability,
social isolation, and loss of interest. He denied hopeless
feelings or suicide attempts. During the hospital course, he
was treated for depression. On discharge, he stated that he
would return to living with his sister and he would seek
employment. The February 1993 discharge summary shows Axis I
diagnoses of alcohol dependence and major depressive
disorder, recurrent. With regard to Axis V, it was noted
that the Global Assessment of Functioning (GAF) was 50 on
admission and 70 on discharge.
A March 1993 assessment review and update report indicates
that the veteran was seen for Aftercare treatment following
successful completion of the 3C program. It was noted that
the issue of possible PTSD was addressed. It was noted that
on the Mississippi scale for combat-related PTSD he had
scored 13 which was suggestive of possible PTSD. However, in
view of the relative lack of symptoms it did not appear that
he was currently experiencing PTSD. A June 1993 case
management assessment note indicates that the veteran was
diagnosed with major depression in addition to alcohol
dependence.
Hospital and outpatient records, dated in 1993, show
prescription of various psychotropic medications. In August
1993, the veteran was seen for "feeling out of control,"
with fears that he might hurt somebody. He reported hitting
a child who lived his home and he felt terrible about it. He
stated that he probably needed to go to the hospital to avoid
hurting himself and others. Complaints included anger,
irritability, depression, trouble sleeping and concentrating,
and suicidal ideations. On August 31, 1993, it was agreed
that hospitalization was necessary due to the veteran's
condition. A VA outpatient medical certificate, dated August
31, 1993, shows that he was alert and oriented times 3, he
was logical, and he denied suicidal or homicidal ideation. A
diagnostic impression of depressed is shown.
A September 3, 1993 progress note shows a notation of
increased anger. On September 10, 1993, it was noted that he
was quite concerned regarding his physical health.
Assessments included that he was feeling helpless and
worried.
On September 27, 1993, a VA Form 21-526 was submitted in the
veteran's favor, indicating that he wished to claim service-
connected benefits for PTSD. In an accompanying letter to
the accredited representative, dated September 9, 1993, the
veteran reported that he had been undergoing PTSD related
treatment during the current year. According to the veteran,
this treatment included an inpatient stay at a VA facility in
Salt Lake City from January 1993 to February 1993 and
continuing treatment with the VA Outpatient Substance Abuse
Clinic (OSAC).
An October 1993 psychosocial assessment report indicates that
the veteran was asking for help with symptoms of post-
traumatic stress. He gave a history of drug use and alcohol
dependence dating to the 1980's. He complained of problems
with generalized pain, sleep disturbance, instability in
employment, major depressions, and financial problems. He
was attempting to further his education by attending a
technical school for further training in the field of
accounting. On mental status, he was polite, dressed in his
own clothes, appeared his stated age, and was healthy
looking. He was alert and had a good attention span. It was
noted that he had significant problems with aggressiveness
and his temper.
An October 1993 VA psychiatric evaluation report shows
impressions of PTSD and alcohol dependence. When seen for
therapy with the Social Work Service in October 1993, the
veteran appeared slightly depressed with a restricted affect
and he seemed angry over his living situation. In November
1993, it was noted that he had started an education upgrade
program to develop computer and accounting skills.
A November 1993 VA medical record indicates that the veteran
was referred to OSAC after completion of 3C as he reported a
longstanding history of alcohol dependence as well as
noncombat stressors in Vietnam. Although he had previously
reported a lack of PTSD symptoms, this issue was explored due
to the Vietnam history and issues of anger control. Final
DSM-III diagnoses were indicated as follows: Axis I, alcohol
dependence, PTSD; Axis II, none; Axis III, none; Axis IV,
unemployment; Axis V, current GAF, 60, highest GAF, 70.
Subsequent treatment included individual and group therapy.
In a statement dated December 1993, the veteran's sister
indicated that her family noticed changes in the veteran
after his return to Vietnam, including that he was very
quiet, he was unwilling to talk much about Vietnam, and he
acted like a stranger.
The record includes a statement, dated February 18, 1994,
which is signed by two social workers who had treated the
veteran at the VA hospital in Salt Lake. These health care
workers indicated that the veteran was a client in the PTSD
unit and that his experience of traumatic recall and
nightmares had grossly interfered with his ability to attend
work assignments. It was noted that he was displaying
evidence of anxiety disorder including heart arrhythmia when
under stress, and it was recommended that he be confined to a
very low stress environment. Prognosis was fair but the
change process could very well extend past 12 months. It was
further noted that the veteran was being treated by VA for
depression and arrhythmia.
In March 1994, the veteran continued to exhibit symptoms of
depression, concerns about missing school as a result of his
physical problems, and sleep disturbance. In a July 1994
statement, he reported that his current VA treatment included
thrice-weekly group therapy for anger management and
recognition and management of distorted thought patterns.
In September 1994, a VA physician indicated that he had
followed the veteran in the PTSD clinic since October 29,
1993, and before this time he had followed the veteran in
Outpatient Substance Abuse. It was noted that the veteran
temporarily felt better on some medications, but they had
either stopped working or he had developed severe side
effects. The physician reported that the veteran seemed to
be getting more depressed again after a period of
improvement, and mood seemed to be tied to pain and
limitations from his physical problems.
A September 1994 psychological assessment report summarized
the findings of testing which the veteran underwent from
October 1993 to January 1994, which included the MMPI-2, the
Mississippi Scale for Combat-related PTSD; the Penn
Inventory; the Beck Depression Inventory; and the
Psychophysiological Assessment. Test results were supportive
of a diagnosis of moderate to severe chronic PTSD in an
individual displaying significant symptomatology. When these
results were considered in combination with diagnostic
interview impressions and information from collaterals,
diagnoses of PTSD and dysthymia were confirmed.
Group therapy notes, dated in October 1994, show that the
veteran complained of decreased mood and recurrence of
intrusive thoughts, triggered by feelings that came up in his
group sessions. On October 21, 1994, he came to the clinic
in crisis and the option of hospitalization was discussed.
The treatment note indicates that the veteran would be
hospitalized for stabilization of PTSD symptoms which had
increased, including intrusive thoughts, sleep disturbance,
and rumination.
In October 1994, the veteran was hospitalized for treatment
of evaluation of recurrent major depression, with main
complaints of an anxious and depressed mood. The onset of
depressive symptoms was dated to one month prior to admission
when he was diagnosed with arterial claudication and he was
told that he might lose his legs. The veteran reported that
he had difficulty maintaining employment due to angry
outbursts, and he stated that he does not have many friends
outside of his family. It was noted his symptoms had
increased since an acute reaction to an experience in his
PTSD group therapy the Thursday before. During the course of
hospital treatment, improvement was seen and the nightmares,
anxiety, and depression were significantly decreased with
less psychomotor retardation. He was still feeling anxious
but outward symptoms such as tremors were less evident. The
October 1994 discharge summary shows the following diagnoses:
Axis I, major depression, recurrent, history of PTSD, history
of alcohol dependence, and history of Valium dependence; Axis
II, cluster C personality traits; Axis III, arteriosclerosis,
history of peptic ulcer disease; Axis IV, moderate; and Axis
V; (GAF) of 50 on admission and 65 on discharge.
A November 1994 case summary, completed during the time of
the veteran's hospitalization, shows that the veteran had
brought himself in to VA for "some time out and to get some
rest." His main complaints were of an anxious and depressed
mood. Additional symptoms included middle and initial
insomnia, anhedonia, decreased energy and concentration, poor
appetite, and some psychomotor retardation. He was not
actively suicidal but claimed to have an unconscious death
wish, intrusive thoughts, strong feelings, and flashbacks
surrounding Vietnam. Other complaints included trembling,
suffocating sensations, cold clammy hands, diarrhea, chronic
headaches, muscle tension, and "raw nerves." It was noted
that he had trouble with anger and aggressiveness in the past
and was began on Depakote. One month ago the anger had
subsided and he became depressed.
On mental status examination, general impressions were of a
cooperative, likable, slightly anxious male who appeared his
stated age. He had good hygiene and was appropriately
dressed. He was tremulous with mild psychomotor retardation.
He was alert and oriented times 4, and speech was soft,
deliberate, and articulate with normal rate and tone. Mood
was moderately depressed and affect was congruent with mood
but somewhat anxious. Thought process was linear and goal-
directed. There was no evidence of delusions and he denied
visual or auditory hallucinations. Abstraction was fair,
judgment was intact by letter scenario, and memory was
intact. Insight was moderate to good, and the veteran was
motivated to get help.
A November 1994 discharge summary indicates diagnoses of
major depression, recurrent; PTSD; alcohol dependence, in
remission; and arteriosclerosis with claudication like pain.
Subsequent VA treatment records, dated in November 1994, show
that the veteran continued to be followed for treatment of
PTSD and cardiac problems. Between December 1994 and
February 1995, the veteran underwent regular group therapy in
the Social Work Service and was followed for depressive
symptoms including problems with sleep. A January 1995 group
progress note indicates that he appeared to have returned to
a debilitating depression level.
In a February 1995 statement, the veteran indicated that his
PTSD symptoms include insomnia, fatigue, arrhythmia,
irritability, lethargy, withdrawal, headaches, nervous
tension, dizziness, and lack of concentration and confusion.
In February 1995, it was noted that the veteran had reported
an increase in his depressive symptoms and that he wanted to
be psychiatrically hospitalized. Treatment notes show
complaints of continuous problems with sleep and that
depressive symptoms remained the same. A February 1995
treatment review note indicates that the veteran was
withdrawn with increased signs and symptoms of depression.
On VA examination in March 1995, the veteran was alert and
oriented times 4 and he was able to do cognitive tests well.
He described his mood as tired and his affect seemed euthymic
but somewhat congruent with the stated mood in that he
appeared a little bit slow in movement. He denied auditory
or visual hallucinations except for hypnagogic manifestations
in sleep. He denied suicidal or homicidal ideation, at no
time did he appear thought-disordered or delusional. The
examiner provided the following diagnoses: Axis I, history
of major depression, recurrent, moderate; PTSD, mild to
moderate severity; and history of valium dependence, history
of alcohol dependence; Axis II, deferred; Axis III,
atherosclerosis lower extremities, history of bronchitis,
history of lower back pain; Axis IV, mild; Axis V, current
GAF of approximately 55.
The examiner commented that it appeared that the veteran
acquired PTSD as a result of his experiences while in
military service in Vietnam, and it also appeared that his
major depression may, in part, be resultant of his PTSD. The
examiner noted that it was impossible to determine whether
his alcohol-related problems were a result of PTSD or
depression in that he had been drinking prior to his military
history. The examiner further noted that the veteran had
been diagnosed with PTSD and depression by 2 VA doctors and
he had undergone psychological and physiologic testing which
indicated high scores for PTSD.
In June 1995, the veteran was found to be disabled for the
purpose of Social Security disability benefits. The decision
shows that the veteran's impairments resulted from
depression, PTSD with a secondary diagnosis of dysthymia,
listing level herniated disc with nerve root impingement,
peripheral vascular disease of both legs, bilateral hearing
loss, and alcohol abuse, which were considered severe. He
was found to be disabled as of December 15, 1992, and the
administrative law judge noted that while the medical
evidence documented a history of alcohol abuse, it was not
found that alcoholism was material to the finding of alcohol
abuse based largely on the basis of the listing level back
disorder and in part on the basis of PTSD and dysthymia.
An August 1995 social work service note indicates that the
veteran was continuing to struggle with signs and symptoms of
PTSD and depression. An August 1995 medical record shows
that he complained of anxiety, irritability, and insomnia.
The record includes a February 1996 statement from a licensed
psychologist, who indicated that she had been providing the
veteran with psychological readjustment counseling related to
PTSD on a contract basis for the Regional Vet Center office
and the Salt Lake City RO. The psychologist noted that the
veteran was currently taking Xanax as treatment for chronic
anxiety and sleep disturbances and he was taking Trazodone to
help with depression and anxiety. The psychologist noted
that the veteran was currently extremely isolated, and
additional symptoms included difficulty trusting, anger
control problems, intrusive energy, negative affect,
difficulty being with people, vulnerability to stress,
avoidance of situations that remind him of his wartime
experiences, problems with memory and concentration related
to PTSD, and alcohol addiction. It was noted that he had
been in recovery from alcohol and drug addiction for about 3
years, and his social and occupational skills had been
impaired enough that he required assistance for
rehabilitation. According to the psychologist, these life
circumstances and experiences put the veteran at a
significant disadvantage with regard to employment and social
interaction.
An April 1996 social work service note shows that the veteran
seemed very frustrated and he exhibited a flat affect. He
was angry at times and at one point became tearful. He
expressed anger about the compensation and pension process.
In May 1996, the veteran seemed less frustrated than at his
last session, and he reported continued anxiety and
depression symptoms.
In May 1997, the Board granted service connection for PTSD.
In November 1997, the veteran was afforded a compensation and
pension examination by a VA clinical psychologist, who
reviewed the claims folder and conducted a clinical interview
as well as testing. The examiner indicated that occupational
evidence of impairment was found in the veteran's reported
work history, which included 9 separate jobs from the period
of March 1972 to December 1992. The veteran stated that he
had not been able to "hold down a job since."
On examination , the veteran was well groomed and dressed in
casual clothes. It was noted that he walked with some
difficulty. Despite his frustration with the disability
claims process, he was cordial and cooperative. He was well
oriented in all spheres, and attention, concentration, and
memory functions were assessed as intact. No gross
indications of a formal thought disorder were in evidence.
He reported no current suicidal or homicidal plans or thought
processes. He indicated that he had entertained suicidal
thoughts in the past and stated that he thinks about it
periodically. He also stated that he fears his anger and had
gotten rid of his guns as a precautionary measure.
The psychologist noted that the MMPI-2 test results revealed
a profile characterized by a high endorsement of the majority
of the clinical scales. It was noted that the symptom
picture that emerges is characterized by significant
interpersonal withdrawal and feelings of severe anxiety.
Depressive symptoms, including suicidal thoughts and
behaviors, are frequent. Individuals with this pattern
report insomnia, anger, and feelings of irritability and
agitation. The examiner provided the following diagnoses:
Axis I; PTSD; Axis II, no diagnosis; Axis III, see medical
records; Axis IV, medical problems, low income, no active
family support; Axis V, GAF at time of examination, 35.
Functioning over the past several years had fluctuated with
an optimum score likely to have been no higher than 45.
In a December 1997 statement, a VA psychiatrist indicated
that he had been working with the veteran on and off since
1993, and felt that he was very familiar with his level of
functioning during that period of time. The physician noted
that the veteran's rating score seemed to be very
inconsistent with the level of performance and was based
totally on a GAF score of 65 after he was discharged from the
hospital in 1994. It seemed to this physician that a lot of
the verbal content and other information in the chart was
ignored. This physician reiterated the veteran's medical
history, include a finding of moderate to severe PTSD on
pyschological testing in 1994, and that the veteran had been
unemployed for the past several years and he was rated by
Social Security as being totally disabled.
The physician noted that the veteran is frequently unable to
get out of his apartment and he has very little social
contact even with his family, with whom he had constant
difficulty when trying to get along with him. It was noted
that the GAF of 65 seemed inconsistent when considering that
he had just been hospitalized because of the severity of his
symptoms. The psychiatrist's own estimate was that the
veteran's GAF had ranged anywhere from 45 to 50 during this
time period with some improvement to 50 when he was able to
take medication. It was also noted that the VA clinical
psychologist had in fact seen the veteran functioning at a
GAF score lower than this estimate. The physician further
noted that the majority of evaluators had rated his
disability in the moderate to severe range.
In November 1997, the RO evaluated PTSD as 10 percent
disabling, effective September 20, 1993. In January 1998, an
increased evaluation of 100 percent disabling was assigned,
effective November 5, 1997.
Analysis
Unless otherwise specifically provided, the effective date of
an award based on an original claim shall be fixed in
accordance with the facts found, but shall not be earlier
than the date of application therefor. 38 U.S.C.A. § 5110(a)
(West 1991 & Supp. 1999). The effective date of an
evaluation and award of compensation based on an original
claim, a claim reopened after a final disallowance, or a
claim for increase will be the date of receipt of claim or
the date entitlement arose, whichever is the later.
38 C.F.R. § 3.400 (1999).
In this case, the award of a 100 percent rating for PTSD was
based on the veteran's original claim for compensation, as it
followed the initial assignment of a rating of 10 percent
disabling for PTSD. Thus, the appropriate effective date for
the award of a 100 percent rating would be the date of
receipt of claim or the date entitlement arose, whichever is
later.
According to applicable criteria, disability evaluations are
determined by comparing the veteran's present symptomatology
with the criteria set forth in the Schedule for Rating
Disabilities (Schedule), 38 U.S.C.A. § 1155 (West 1991 &
Supp. 1999); 38 C.F.R. Part 4 (1999). In making a
determination in this case, the Board has carefully reviewed
the pertinent medical evidence, including the veteran's
entire medical history in accordance with 38 C.F.R. § 4.1
(1999) and Peyton v. Derwinski, 1 Vet.App. 282 (1991). Where
there is a question as to which of two evaluations shall be
applied, the higher evaluation will be assigned if the
disability picture more nearly approximates the criteria
required for that rating; otherwise, the lower rating will be
assigned. 38 C.F.R. § 4.7 (1999). All evidence must be
evaluated in arriving at a decision regarding an increased
rating. 38 C.F.R. § 4.2, 4.6 (1999).
In psychiatric cases, social integration is one of the best
evidences of mental health.
However, in evaluating impairment resulting from the ratable
psychiatric disorders, social inadaptability is to be
evaluated only as it affects industrial adaptability. This
contemplates the effect that the abnormalities have upon the
veteran's earning capacity. 38 C.F.R. § 4.129 (1996). Two of
the most important determinants of disability are time lost
from gainful work and decrease in work efficiency. Emphasis
is to be placed upon the examiner's description of actual
symptomatology. Ratings are to be assigned which represent
the impairment of social and industrial adaptability based on
all the evidence of record. 38 C.F.R. § 4.130 (1996).
When evaluating a mental disorder, the rating agency shall
consider the frequency, severity, and duration of psychiatric
symptoms, the length of remissions, and the veteran's
capacity for adjustment during periods of remission. The
rating agency shall assign an evaluation based on all the
evidence of record that bears on occupational and social
impairment rather than solely on the examiner's assessment of
the level of disability at the moment of the examination. 38
C.F.R. § 4.126 (1999).
The Board notes that the during the pendency of this
veteran's claim, the schedular criteria for evaluation of
mental disorders were changed effective November 7, 1996.
Where a law or regulation changes after a claim has been
filed or reopened, but before the administrative or judicial
appeal process has been concluded, the version most favorable
to an appellant applies unless Congress provided otherwise or
permitted the Secretary to do otherwise and the Secretary
does so. Marcoux v. Brown, 9 Vet.App. 289 (1996); Karnas v.
Derwinski, 1 Vet.App. 308 (1991); see also VAOGCPREC 3-2000
(April 2000). In light of the evidence of record, the Board
finds that the old rating criteria pertaining to evaluation
of mental disorders are more favorable to the veteran.
Prior to November 1996, the criteria for psychoneurotic
disorders provided a 100 percent rating where the attitudes
of all contacts except the most intimate are adversely
affected as to result in virtual isolation in the community
and there are totally incapacitating psychoneurotic symptoms
bordering on gross repudiation of reality with disturbed
thought or behavioral processes (such as fantasy, confusion,
panic, and explosions of aggressive energy) associated with
almost all daily activities resulting in a profound retreat
from mature behavior. The individual must be demonstrably
unable to obtain or retain employment.
Having reviewed the evidence of record, the Board has
determined that an effective date of February 12, 1996 is
warranted for the grant of a 100 percent evaluation for PTSD.
The Board has conducted a careful and longitudinal review of
the evidence dating from 1991 to the present time, including
the veteran's hospital reports, VA examinations, and
treatment reports. The November 5, 1997 VA examination
report indicates that a clinical psychologist assigned a GAF
of 35 for the date of the examination, and it was estimated
that functioning over the past several years had fluctuated
with an optimum score likely to have been no higher than 45.
In discussing the history of the veteran's PTSD symptoms, it
was the opinion of a VA treating psychiatrist that the
veteran's GAF had ranged anywhere from 45 to 50 in the years
since 1993. According to the DSM-IV, a GAF of 35 equates to
major impairment in areas such as work or family relations,
judgment, thinking, or mood (e.g. depressed man avoids
friends and is unable to work); while a GAF of 45 equates to
serious impairment in social, occupational, or school
functioning (e.g., no friends, unable to keep a job).
Thus, both the VA examiner and the veteran's VA treating
physician have suggested that PTSD was productive of a
serious impairment in areas of work or family relations
during the "last several years," or at some time prior to
the actual date of the November 5, 1997 examination report on
which the 100 percent rating was based. However, neither the
clinical psychologist or the VA treating physician identified
a specific date on which the veteran's PTSD symptomatology
became totally disabling. In its review of the available
evidence, the Board found a psychological evaluation report
dated February 12, 1996, to be probative of this issue.
This examination report, completed by the veteran's
vocational rehabilitation counselor, indicates that the
veteran's PTSD was manifested at that time by extreme
isolation, difficulty trusting people, anger control
problems, and problems with memory and concentration related
to PTSD. It was also noted that the veteran's social and
occupational skills had been impaired to the point where he
required assistance to rehabilitate, and that these life
experiences and symptoms put him at a significant
disadvantage with regard to employment and social
interaction. These findings are consistent with that of the
VA examination in November 1997 and the statement of the
veteran's physician to the effect that the veteran is
frequently unable to get out of his apartment and he has very
little social contact even with his family.
In light thereof, the Board is of the opinion that the
veteran's symptomatology as described in the February 12,
1996 psychological evaluation statement is consistent with
the previously effective criteria for a 100 percent rating
for PTSD. Specifically, it is indicated that there is
significant impairment in the veteran's ability to obtain and
maintain employment as a result of PTSD symptoms, which
include extreme isolation and explosions of aggressive
energy. These findings are consistent both with the rating
criteria and with the findings of the VA examiner and
psychiatrist in 1997, to the effect that PTSD was productive
of serious impairment in the veteran's employability at a
time prior to November 5, 1997.
As such, the Board finds that the evidence of record supports
a finding that PTSD was 100 percent disabling as of February
12, 1996, and that entitlement to a total rating for PTSD
arose as of that date. As the date entitlement arose
(February 1996) has been found to be later than the date of
claim (September 1993), the appropriate effective date under
38 C.F.R. § 3.400 for the grant of service connection for
PTSD is February 12, 1996.
The Board also finds that the available evidence does not
support the assignment of a total, or 100 percent rating for
PTSD prior to February 12, 1996. Specifically, evidence
dating to 1993 indicates that the veteran was receiving
continuing education in accounting skills. During a period
of hospitalization in November 1994, he was alert and
oriented, thought process was linear and goal-directed, and
judgment and memory were intact. On VA examination in March
1995, he was alert and oriented times 4, he was able to do
cognitive tests well, and he did not appear thought
disordered or delusional. Thus, the available evidence does
not suggest that in the years prior to 1996, PTSD was
productive of totally disabling psychiatric symptomatology as
set forth in either the old or the new criteria.
Furthermore, while the veteran was determined to be disabled
as of 1992 for Social Security disability purposes, the
disability determination decision indicates that this award
was based not only on depression and service-connected PTSD
with dysthymia, but also on the various nonservice-connected
physical disabilities including listing level herniated disc
with nerve root impingement, peripheral vascular disease of
both legs, and bilateral hearing loss. In the Board's view,
the initial evidence indicating that the veteran was
unemployable due to impairment from PTSD alone is shown in
the February 12, 1996 psychological evaluation report.
The Board recognizes that there is evidence of significant
PTSD symptomatology throughout the appeal period, from 1993
to the present time. However, at the present time the Board
does not have jurisdiction of the issue of entitlement to a
rating in excess of 10 percent for PTSD for the period
beginning September 20, 1993, as an appeal has not been
perfected thereon. Instead, the Board's analysis in this
decision is necessarily confined to the earlier effective
date issue which was developed for appeal. As such, at this
time the Board may not decide the propriety of assigning an
evaluation in excess of 10 percent disabling for the period
prior to February 12, 1996.
For the reasons stated above, therefore, the Board finds that
an effective date of February 12, 1996, is warranted for the
grant of a 100 percent rating for PTSD. In doing so, the
Board has utilized the provisions of 38 C.F.R. § 3.102 (1999)
to resolve doubt in the veteran's favor. Accordingly, the
veteran's earlier effective date claim is granted.
ORDER
An effective date of February 12, 1996, is warranted for the
award of a 100 percent rating for PTSD.
REMAND
Having reviewed the record, the Board has concluded that this
claim must be returned to the RO in order to ensure
compliance with due process considerations. In a November
1997 decision, the RO implemented a grant of service
connection for PTSD and a 10 percent rating was assigned,
effective September 20, 1993. In a statement dated December
2, 1997, the veteran indicated that he disagreed with the
November 1997 decision insofar as the percentage of
disability assigned to his claim. In a subsequent decision,
the RO granted a 100 percent evaluation for PTSD, effective
November 5, 1997; however, this did not constitute a complete
grant of the benefits sought on appeal as the total rating
was not made effective retroactively to the date of the
veteran's claim. As such, the veteran's appeal for an
evaluation in excess of 10 percent for PTSD, for the period
beginning September 20, 1993, continues to the present time.
See Fenderson v. West, 12 Vet. App. 119 (1999).
However, the record does not indicate that the veteran has
been furnished a Statement of the Case with regard to this
issue. In Manlincon v. West, 12 Vet. App. 238, 240-41
(1999), the U.S. Court of Appeals for Veterans Claims
indicated that in a case in which a veteran expressed
disagreement in writing with an RO decision and the RO failed
to issue a Statement of Case, the Board should remand the
issue to the RO, not referred it there, for issuance of a
Statement of the Case.
Accordingly, the case is REMANDED for the following action:
The RO should furnish the veteran a
Statement of the Case with regard to the
claim for an evaluation in excess of 10
percent disabling for PTSD, for the
period beginning September 20, 1993. The
RO must consider whether staged ratings
are warranted and explicitly note that
staged ratings have been considered. The
veteran must be informed that the scope
of the issue includes the possibility of
staged ratings during the appeal period.
Fenderson, supra.
The claim should not be returned to the
Board unless the veteran files a timely
substantive appeal.
Thereafter, and upon compliance with the requisite appellate
procedures, this claim should be returned to the Board for
further action, as appropriate.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded to
the regional office. Kutscherousky v. West, 12 Vet. App. 369
(1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and
Statutory Notes). In addition, VBA's Adjudication Procedure
Manual, M21-1, Part IV, directs the ROs to provide
expeditious handling of all cases that have been remanded by
the Board and the Court. See M21-1, Part IV, paras. 8.44-
8.45 and 38.02-38.03.
The purpose of this remand is to conduct further evidentiary
development. The Board intimates no opinion as to the
ultimate outcome of the claim on appeal.
C. P. RUSSELL
Member, Board of Veterans' Appeals